‘Why should abortion be governed by criminal law?’

Last week, it was reported that the High Court in Belfast has granted leave for a judicial review of the Public Prosecution Service for Northern Ireland (PPS). The judicial review concerns the PPS’s decision to prosecute a woman who had obtained the abortion pills mifepristone (also known as RU486) and misoprostol online in 2015 for her 15 year-old daughter, who had an unwanted pregnancy. The girl said that her 16 year-old boyfriend was physically abusive to her.

These pills are available online, for example from Women on Web. The daughter took the pills, but later consulted her doctor, as she was feeling stressed by her boyfriend. She explained that she had taken the pills. Two months later, the surgery reported her to the police: on what grounds is not clear. Thereafter, the PPS decided to charge her mother.

This troubling case is the latest in a series of cases where women in Northern Ireland have been prosecuted for ordering or for taking these abortion pills. Unlike Britain, Northern Ireland is not subject to the Abortion Act 1967 (as amended), under which abortion may lawfully be provided if certain statutory requirements are met. Abortion is a contentious issue there. The law on abortion in Northern Ireland is governed by two criminal statutes, sections 58-9 Offences Against the Person Act 1861 and section 25(1) Criminal Justice Act (Northern Ireland) 1945.

Section 58 OAPA provides, so far as material:

‘….whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony….’

Section 59 provides:

‘Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanor….’

In March 2016, after a series of court cases, the Department of Health in Northern Ireland finally issued guidance for health care professionals on the circumstances in which a pregnancy may lawfully be terminated.

The law is governed by the case of R v Bourne [1939] 1 KB 687, where Macnaghten J directed a jury that an abortion was lawful if performed to save a woman’s life, or to preserve her health. However, more recent decisions have given the concept of preservation of health a fairly restrictive meaning. Abortion for fetal anomaly is a very grey area.

On disclosure to the police, the Guidance states at para. 6.1:

If a health and social care professional knows or believes that a person has committed certain offences, including an unlawful termination of pregnancy, he/she has a duty under the Criminal Law Act (NI) 1967 to give to the police information likely to be of material assistance in securing the apprehension, prosecution, or conviction of that person. However, the health and social care professional need not give that information if they have a reasonable excuse for not doing so; the discharge of their professional duties in relation to patient confidentiality may amount to such a reasonable excuse.

It is most unusual for a court to permit a judicial review of a decision to prosecute, thereby putting the criminal proceedings on hold. However, this case has some troubling features. The accused mother says that she did not know it was illegal to import these pills. She also argues that she could not reasonably have been expected to make her daughter go through with an unwanted pregnancy.

One point of interest however concerns the proper interpretation of the phrase ‘any poison or other noxious thing’ in ss.58-9 OAPA. A Queensland case in 2010, R v Leach & Brennan, concerned the prosecution of a young woman and her partner for importing the abortion pills online and then using them. The defence argued that these pills were not a ‘poison or other noxious thing’, as they were recognized medicines. They called Professor Nicholas Fisk, an expert in obstetrics and fetal medicine, to evidence. He testified that these drugs were safe and effective, and used worldwide. Judge Everson told the jury that they had to be satisfied the drugs were noxious to Ms Leach, in order to convict. The jury acquitted the couple.

The same logic surely applies in the latest Northern Irish case. It is difficult to understand, therefore, why prosecutions are being brought there in respect of the ordering or use of these abortion pills. It also raises the important question of why, today, abortion should be governed by the criminal law at all.

About Barbara HewsonBarbara is a barrister practising at 1 Gray's Inn Square. She specialises in public and administrative law; human rights & civil liberties; and professional discipline and regulatory law. Her practice includes mental capacity and court of protection work, judicial review, inquests, healthcare law, professional discipline and employment law.